Zulay RENDON, individually and as parent and natural guardian of Garcia, a minor, Appellant v. PHILADELPHIA HEALTH SERVICES; Episcopal Hopsital; Dr. Harshad; K. Patel; Lehigh Avenue Radiology Associates, Inc.; United States of America, 38 F. App'x 807

OPINION OF THE COURT STAPLETON, Circuit Judge. When the District Court granted

summary judgment to the defendants in this medical malpractice case brought under the Federal Tort Claims Act, it did not have the benefit of our deicsion in Hughes v. United States, 263 F.3d 272 (3d Cir.2001). That FTCA case, like this one, involved a malpractice claim based on allegations that the defendants caused the plaintiffs injuries by negligently failing to diagnose and/or treat a condition that needed medical attention.

We held for the first time in Hughes that “the FTCA’s statute of limitations is not jurisdictional” and that “[f]ailure to comply with the statute is an affirmative defense which the defendant has the burden of establishing.” Id. at 278. The District Court in this case understandably treated the limitations issue as a jurisdictional one with the burden of proof on the plaintiff, and this approach may well have influenced its ultimate conclusions. Moreover, Hughes also provides new guidance on the application of the Supreme Court’s decision in United States v.

Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) to a situation in which the alleged malpractice is a failure to diagnose and/or treat. Id. at 278. We will vacate the judgment of the District Court and remand to provide an opportunity for the District Court to consider the issues here raised in light of the development of the relevant law in Hughes, 263 F.3d 272 (3d Cir.2001).